Felix Cohen’s ‘Handbook of Federal Indian Law’: Essential for all libraries

8/30/06

With little of the fanfare it deserves, the new edition of Cohen’s “Handbook of Federal Indian Law” is beginning to show up in law school libraries and, one hopes, on the bookshelves of federal courts around the land. This handsomely bound, nearly 650-page-long and quite expensive volume has been almost 12 years in the making, and it arrives in the nick of time. It celebrates the true legacy of Felix Cohen (1907 – 1953), the great champion of Indian rights whose spirit has been greatly abused of late in the federal courts.

Cohen – law professor, Interior Depart-ment official and practicing attorney – is honored in many circles, but his fame in the Indian world rests on two things, and one is his handbook. As Assistant Solicitor at Interior in the late 1930s, Cohen undertook the herculean labor of compiling and organizing a century and a half of treaties, statutes, judicial opinions and administrative rulings on Indian law. His handbook, first published in 1941, gave a coherent statement of rights based on tribal sovereignty. Then-Interior Secretary Harold Ickes explained its purpose succinctly in a foreword: “Ignorance of one’s legal rights is always the handmaid of despotism.”

But the first appearance of the handbook as an internal government document was just the beginning of a struggle against oppression. Cohen personally campaigned against injustice toward Indians and other vulnerable groups until his early death in 1953. (Like his colleague, John Collier, a fellow architect of the 1934 Indian Reorganization Act, Cohen also protested ill treatment of immigrants. He spent most of his last day alive writing an article on civil rights for immigrants.) In addition to his eloquent and often sardonic writing, he represented a number of tribes in ground-breaking litigation.

His handbook also went through a career of struggle. When the termination policy of the Eisenhower years held sway, Interior suppressed Cohen’s original version and issued a revision in 1958. As the introduction to the new edition recounts it, “The 1958 edition stressed the plenary power of the federal government over Indians and Indian tribes and de-emphasized tribal sovereignty. According to a study by Philip S. (Sam) Deloria, ‘… Where Cohen sees the tribes as sovereign peoples, entitled to self-government and responsible for their own destinies, the 1958 edition tends to see them as thorns in the side of the American system of government.’”

Indian law scholars have struggled ever since to recover the real Cohen. A facsimile edition in 1971 rescued the original 1941 handbook. Congress mandated an updating of the work in the 1968 Indian Civil Rights Act, and the project was finally completed with substantially new content in 1982. The federal courts, notes the current edition, have exploited the differences in tone. The Supreme Court majority in the infamous Nevada v. Hicks decision in 2001 cited the anti-sovereignty edition of the handbook, while the dissent cited the original.

The prestige and strategic importance of this reference inspired the current edition. Credit goes to Sam Deloria of the distinguished Dakota family. As director of the American Indian Law Center at the University of New Mexico, he sponsored the 1982 edition and in 1993 began to organize an update. He ultimately delegated the project to professors Robert N. Clinton and Nell Jessup Newton. After Clinton left the project in 1998, Newton carried on with the encouragement of Cohen’s widow, Lucy Kramer Cohen. While dean of the University of Connecticut Law School, Newton pushed a large group of contributors through “marathon editorial and writing sessions” and had the draft substantially done by the end of 2004.

The work is published by LexisNexis Matthew Bender as the 2005 edition. The editors promise that it will be updated every two years, so a 2007 edition is already in the works. But word is spreading so slowly that the current edition is just beginning to circulate. Even though the Yale Law Library holds Cohen’s personal papers, for instance, it acquired the new handbook only this May. Newton and her group of authors deserve far greater recognition for their work.

A new appreciation is due for Felix Cohen as well. The extent of his contribution becomes apparent in another significant book, a selection of his essays first published by Yale University Press in 1960 under the title “The Legal Conscience.” He was an advocate for Indian rights, to paraphrase the song, long before minorities were cool. (He observes in one article that the first modern study of U.S. racial legislation was “made under Nazi auspices … to prove that Americans were doing circumspectly or hypocritically what the German Government did more honestly.”)

But Cohen drew his inspiration from the very first advocates of Indian rights. He repeatedly quotes Francisco de Vitorio, the 16th century Spanish theologian who by now should be a familiar name to our readers. A seminal essay in 1942 cites “The Spanish Origin of Indian Rights in the Law of the United States,” crediting Vitorio with the doctrines of Indian equality and tribal self-government. Cohen might have exaggerated Vitorio’s influence on the landmark decisions of Chief Justice John Marshall, as Professor Steven Newcomb maintains, but Vitorio’s influence on Cohen is manifest.

We can infer another source for Cohen’s Indian advocacy as well. He undertook his great work in the shadow of the Nazi drive to exterminate his own people. He explicitly saw the Indian’s role in America in terms of the Jewish experience in Europe. This brings us to the second source of his fame in Indian country. He might be best known for his comparison of Indians to “the miner’s canary” who warned of odorless carbon monoxide in the mineshaft. A Google search of “Felix Cohen canary” brought up 42,400 hits, many of them misquotations and misattributions.

We’ve always disliked the canary analogy, which implied to us that Indians were feathered objects of amusement for the main society, whose most useful purpose was to die. But what Cohen actually wrote, in a 1953 attack on federal termination policy, was far more ominous. “Our interest in Native American self-government today is not the interest of sentimentalists or antiquarians,” he said in the Yale Law Journal article “The Erosion of Indian Rights, 1950 – 53.”

“We have a vital concern with Indian self-government because the Native American is to America what the Jew was to the Russian Czars and Hitler’s Germany. For us the Indian tribe is the miner’s canary, and when it flutters and droops we know that the poison gases of intolerance threaten all other minorities in our land.”

Cohen wrote in a time when the dominant society believed, somewhat to its relief, that Indians were a vanishing race. (Although he repeatedly emphasized that the Indian population was the fastest growing in the country.) His diagnosis shows the depth of his wisdom: “We are all irritated at the sight of those we have wronged.”

The “twinge of national conscience,” he continued, showed itself most deeply “in a desire to believe that the Indian is, either physically or culturally, a dying race, unable to utilize white man’s civilization, and therefore an obstacle in the road to progress.” This attitude was still alive, he said, in the dispossession of the tribes of Alaska and Nevada, but he warned, “Oppression has not often destroyed the life of the oppressed, but it has always poisoned that of the oppressor.”

The forces that Cohen fought are still active today, even in the guise of his liberal Democratic co-religionists, and his writings are just as important as ever. The new legal handbook that bears his name should be as widely distributed as possible, and so should his essays.

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